Hsbc Cca

[thirty-n-fat]

Please merge with another thread if that will be better for the forum - Im not sure?

 

 

Following a cca request to hsbc over a credit card that is a major worry, I recieved a blank form. After the kind adivce of some people on this forum, I sent the following...

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request. On Txxxxx 2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference. You have failed to comply with request, and as such the account entered default on xxxx May 2009.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

As you may not be aware, failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a compliant credit agreement is a very clear dispute and as such the following applies.

·may not demand any payment on the account, nor am I obliged to offer any payment to you.

·may not add further interest or any charges to the account.

·may not pass the account to a third party.

·may not register any information in respect of the account with any credit reference agency.

·may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

After taking legal advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I have now recieved this..

I refer to my previous correspondence data xxxxx 2009 concerning a request that we provide an origional signed agreement for the above account.

 

We have complied with the requirements of section 78 of the consumer credit act. In particular, we have supplied copies compliant with regulation3(2)(b) of the consumer credit (cancellation notes and copies of documents) regulations 1983.

 

With regard to your requests concerning closing the account and refunding charges, please be aware that the effect of unenforceability under the cca, as such unenforceability we aver does not apply in this case, is to prevent a lender from enforcing the credit agreement in courtl It does not render the credit agreement void.

 

There is no requirement under section 78 that the origional or a photocopy of the origioanl signed agreement be provided. Furthermore, there is no duty under the act obliging a creditor to provide further copies of copy agreement or notices already supplied under Sections 61, 62, 63 and 64 of the act. These copies and notices are required to be provided to the customer when the agreement was made and this was done at the time. If it is your assertion that we did not comply with these sections at the time the agreement was madem we will be obliged to put you to strict proof.

 

While I understand this may not be the response you were hoping to receive, I trust I have now clarified the banks final position on this matter.

Can any one advice where I stand and what my next step is?

 

Can I read between the lines that I have a good, fair or otherwise chance of taking this forward?

Edited July 4, 2009 by thirty-n-fat
Im not great with a keyboard!

[silverfox1961]

Hi,

They have sort of complied with your request. They are allowed to omit certain details however, if they have sent you a blank agreement then I don't think it's enforceable. Can you post the agreement up (minus personal details)

 

There are a couple of ways to make them supply you. One is a SAR and the other is a cpr 31.16 request:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html#post1868913

 

Have a look and see if you could use it but only if you're serious about taking them to court to enforce compliance.

 

If you SAR them:

It costs £10

Send by recorded delivery

Give them 40 days from receipt

 

Lots af SAR's have come back because the debtor hasn't signed so I would recommend signing it but do it on this:

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=9902&d=1245343818

 

good luck

 

fox

[thirty-n-fat]

silverfox, they have in fact sent me a blank agreement and a leaflet of upto date ts and cs. my understanding is that a blank form is not compliancy but i can see why they would argue this.

 

I have already sent an sar at the same time as I sent the above letter, and they are playing games stating the signature doesnt match but I am pushing them and hope to resolve soon as the 40 days are coutning down.

 

I understand that once I recieve all my details via sar, there will either be no agreement, an unenforceable agreement or an enforceable agreement. Am I correct to assume that I can do no more until I wait for this?

 

With regards to the why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement thread, I havent read this yet but I am thinking that an SAR would cost only £9 more than an SAR (£1 v £10) and would not be really any slower way of seeing your documentation.

[silverfox1961]

The SAR should bring back everything they have, including a copy of your agreement.

 

As your CCA request didn't bring back a valid CCA, you could put the account into dispute.

There are a few letters around but I like this one:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/172071-letter-co-solicitors.html#post1856406

 

There is also this one

 

/www.consumeractiongroup.co.uk/forum/debt-collection-industry/172071-letter-co-solicitors.html#post1856406

[thirty-n-fat]

thanks for the reply silverfox, Im a little confused - I am new here and struggle to understand lots of text on screen but my printer is running low on juice and printing to little to read.

 

I have sent the letter you describe and I have quoted the wrong letter in my top post, I have now ammdned it with the correct letter (sorry for confusion).

 

It seems that I have tried to put the account into dispute and they have brushed this off.

 

Am I now only able to wait for the SAR or should i start a complaint with an authorities to show that I wont listen to their half arsed spin?

[Castlebest]

Hiya Phil , The bank is allowed to provide a blank copy of what your agreement would have been like from a CCA section 78 request however if they do this its a good sign that they don't have an agreement for your account and therefore a lot of people carry on with an "account in dispute" letter from this point.

 

The Data Protection Act SAR is a totally different animal, if worded correctly they should provide you with copies of everything they have that has anything at all to do with you for any account you have ever had with them... literally everything.

 

I would be inclined to wait and see what turns up from your SAR before progressing further, at least then you should know as much as they know about you .

 

pete

[thirty-n-fat]

In summary, I have done as much as I can and there is no more I can do other than wait for my SAR request.

 

I have read elsewhere that they dont always comply with the SAR so I have a feeling this could be a loooong time!

[johnnymitch]

Hi again tnf -

 

If they don't comply , or if they only partially comply an you think there's more .....come back and we'll sort you out a letter to gee them up - they're playing silly beggars with practically everybody these days so don't think it's just you if they come back with lame excuses ......

[thirty-n-fat]

I have finally recieved my SAR papers. I received a letter last week telling me to wait in on Monday. Monday came and went. I recieved the papers on Thursday, sent Tuesday - pathetic!

 

I have not recieved anything of note and not a hell of a lot, just database print offs that tell nothing. Mot notable, nothing that is apparantly an application form - can I assume that this means that they dont have an enforceable application of file?

 

if anyone can help me with the next steps then please help. Can I report to a breach of data protection due to late and incomplete request? Can I push forward that this is not enforceable?

[naughtypanther]

Hi all,

 

following this and a few other threads, and have a question for those with ultimate knowledge of these things:

 

If the CCA request isn't met after 14 days, you can claim the account is in dispute. But if, as has happened here for thirty n fat, they supply a blank agreement, and this apparently they are allowed to do, does this then mean that the account can no longer be considered in dispute?

 

I'm sure if this is clarified, a lot of people here (me included:oops:) will be less confused and more empowered.

 

thanks

 

naughtypanther

[johnnymitch]

Hi tnf , time to send them the next stage letter :

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/129-data-protection-act-non-compliance-template-letters-

 

List all the documents you want them to produce but you could stress the point of them producing the agreement you require ... and you could add :

 

"PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec) "

[Old Cogger]

subbing

[lee32uk]

HSBC do not keep any documents prior to 2003 (I have it in writing) so if your account is from 2003 or before then there is a good chance your agreement went through the shredder

[zooman]

Thats a very stupid breach of the Consumer Credit Act and in fact wouldn't be backed by the Data Protection Act which they would rely on to defend their actions.

 

The data protection act states they only need to keep information that is under 6 years old, but if an account is still valid or has been in the last 6 years then that data should be retained.

[thirty-n-fat]

Hi tnf , time to send them the next stage letter :

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/129-data-protection-act-non-compliance-template-letters-

 

List all the documents you want them to produce but you could stress the point of them producing the agreement you require ... and you could add :

 

"PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec) "

 

 

Thanks Jonny, that is really helpful.

 

As I am trying to use SAR to backup my CCA - is there anything specific I should ask for here? Im thinking that if I give them enough rope they may hang themselves!

[InformedSearcher]

HSBC do not keep any documents prior to 2003 (I have it in writing) so if your account is from 2003 or before then there is a good chance your agreement went through the shredder

 

They might tell you that but I'd bet that their responce is what it is simply because they need not tell you otherwise. I'm sure they will have more because people have made unfair charge claims with them as with others. I can just imagine the follow on after the case when they if they stood by that would be pressed for potential probable overcharged (aka alledgedly stolen) monies over 6 years old. I have to say I smile at the thoughts of that happening.

 

In fact I'm quite surprised that all the banks have not started court cases from all the extra work those S.A.R.'s cost them to produce - Now there's a thought is all their customer base started requesting those. You can imagine their sub-contracted Malaysian, Philipino and Indian workforces increasing dramatically! There was a time when I thought HSBC were different from the rest but it appears they are as bad if not worse - all to do with not telling you when you open/are offered accounts what they wil do when things go wrong.

 

Michael

[johnnymitch]

Thats a very stupid breach of the Consumer Credit Act and in fact wouldn't be backed by the Data Protection Act which they would rely on to defend their actions.

 

The data protection act states they only need to keep information that is under 6 years old, but if an account is still valid or has been in the last 6 years then that data should be retained.

 

 

Absolutely right zooman , it's six years from the closure of an agreement / account .....

[lee32uk]

I would like to see them explain to a Judge in Court.They are full of contradictions.They sent me a blank agreement for my cca request, and when I pressed them for the original they stated they did not have it.They have now responded with a 'reconstituted' agreement which is just another blank agreement with my name printed on it

I have also threatened them with the anti-money laundering regs and I will report them to the crime branch of HM Treasury.HSBC haven't replied to the letter apart from acknowledging it about a week ago.

[thirty-n-fat]

Hello people, it has been a long time since I last posted due in part of a spell and bad health and in part to a spell of my internet/pc not working!

 

 

As an update, I have received a response to my SAR request which is both late and incomplete. A week before the SAR deadline, thy sent a letter promising it to be delivered on the deadline day, I was in all day but recieved the box 3/4 days later.

 

Despite the fact that in the last 6 years I have had mortgage, loan, 2x credit cards, a buiness account and 2 joint accounts - I actually received very little details from them, and nothing that even looked like a signed application form of any description.

 

My question is now, what do I do? Do I stop paying, do I send another letter, do I complain that I have incomplete details to the DPA?

 

I have been told that because there is no signed application form in the SAR request this means that it would be difficult for them to then produce said from at a later date and this puts me in a strong position, is this true?

 

Thanks all for any advice or help. Regards,

[johnnymitch]

Hi tnf , welcome back ... I hope your health is improved now ......

 

have been told that because there is no signed application form in the Subject Access Request request this means that it would be difficult for them to then produce said from at a later date and this puts me in a strong position, is this true?

 

 

It's a bit early to assume that they haven't got an agreement ...just because they haven't included it at this stage doesn't mean they haven't got one . You have to force their hand and get them to admit (preferably in writing) that that is the case .......

If you ask and they haven't got one they are obliged by law to tell you so .... but that's a bit further down the line .

 

What I would suggest now is that you send them a 'non-compliance ' letter , detailing everything you believe is missing from what they have sent you ...... one of the letters on this link should get you started again ......

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/129-data-protection-act-non-compliance-template-letters-

 

Hope this helps tnf ...........

[thirty-n-fat]

thanks for all of the help.

 

I now have template 2 ready to send, but I am not sure what to ask for...

 

LETTER BEFORE ACTION

Section 7 – Data Protection Act 1998

 

Dear Sir/Madam

 

Account: xxxxxxxx

 

I am in receipt of the documents that you have supplied in response to my Data Protection Act information request dated DATE. The disclosure of personal data is incomplete in that at least the following documents are missing.

 

1) You have failed to provide a complete list of transactions and charges relating to this (or any) account.

2) You have provided no notes, or documents relating to the application form and/or signed agreement for this (or any) account

3) You have provided no notes, or documents relating to any correspondance realting to this (or any) account

 

This is not an exhaustive list by any means, it is just an example of some of the information I am missing.

 

Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998.

 

The time for compliance with my request has now expired. If you do not comply fully with my Subject Access Request within 7 days, I shall apply to the County Court for an order to enforce compliance, together with damages at the discretion of the court.

 

Yours faithfully,

 

If they fail to come up with an agreement after this, can I assume that it is lost?

 

At the same time should I also send an account in dispute letter? I am told that a late or missing payment at the same time as the above is a risky way of pushing them to act of the situation quickly - has anyone been through this situation?

 

I owe circa £6,500 on this card - does this have any bearing on how seriosuly they will fight this?

[johnnymitch]

By law they are obliged to tell you if they cannot supply the agreement :

 

You could add :

"PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec) "

Once you pin them down to admit this , in writing, you can fairly safely assume that it is lost ..... if they magically produced it in court at a later date the court would not take too kindly to their time being wasted ....

By vrtue of the fact that they are in default of the Data Protection Act regarding your account , I would say that the account is already in dispute ... but it might not do any harm to remind them ......

I don't think the amount will matter much .......IMHO ...they will try to bluff you out of it anyway ....

[thirty-n-fat]

I think I may be somewhere but would like some opinions. I received a large parcel today from HSBC which included all statements for 6/7 years and a letter explaing that they do not have my origional signed credit agreement. Doesthis mean that I can now cancel my direct debit and send a letter which should close this off?

[johnnymitch]

Hi tnf ,

 

I think you may be jumping the gun a bit .... the fact that they have admitted(in writing) that they can't produce the agreement is great .

 

But it doesn't make the debt go away .... it makes it 'unenforceable' which means you still owe it , but they can't chase you for it - you can make them an offer of settlement .... or pay a minimal amount .....as long as you don't use the account again........

 

you could send something like this ..suitably amended :

 

TO |: HSBC

 

Dear XXXXX

 

ref. XXXXXXXXX

 

Thank you for your letter dated XXXXXXXX

 

As you have admitted that you don’t hold a valid CCA for this account and the one you have sent me is an agreement that you cannot prove I may or may not have signed, then I consider that you have no evidence on which to base your accusation .

 

The agreement you have sent me renders this account unenforceable. I am now saying, based on the letter and agreement you have provided, that this account is unenforceable.

 

As a gesture of goodwill on my part I will pay you £1.00 a month towards this debt as long as you agree to:-

 

Remove all interest charges.

Removed all late payment fees.

Stop adding interest charges.

Stop adding late payment fees.

 

If you have not replied to me within 14 days of the date on this letter then I will assume you accept this offer.

 

Yours

or have a look at this link :

 

Courtesy of 'atwozee'

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/190821-hsbc-does-incorrect-unenforceable-2.html#post2071656

[thirty-n-fat]

Hi - I hope my username raises a smile and helps to lighten what can be a dark subject for many of us!

 

Thanks I understand that this is the battle won and not the war but the reason for my enthusiasm is due to the fact that I can at least reduce my outgoing at least in the shortterm.

 

I will sent this letter and my only question is what if they dont agree - can they and will try try to enforce it? And I am told that I can try to force them to remove charges under the DPA but as I am eternal pessimist and never thought I would get this far.

 

I have my currnt account with the listening bank at the momnet, should i think about moving or would moving be difficult at the moment due to this being on my scoring?